J.A., Petitioner, v. STATE (2026)

Order

Petition for Review

J.A.¹ petitions this Court to review the superior court's order authorizing the Alaska Psychiatric Institute (API) to involuntarily medicate him under Sell v. United States in an effort to restore him to competency.² In a previous order, we granted J.A.’s petition and remanded this case to the superior court for clarification of the testimony elicited at the Sell hearing. On remand, the superior court held an additional evidentiary hearing and subsequently issued findings of fact and conclusions of law reaffirming its previous decision authorizing API to involuntarily medicate J.A.

We have reviewed the superior court's original and supplemental orders as well as the relevant evidentiary hearings. For the reasons explained in this order, we AFFIRM the superior court's order.

Background facts and proceedings

J.A. is charged with two counts of third-degree assault and two counts of second-degree terroristic threatening based on allegations that he threatened to kill certain law enforcement officers and threatened to bomb the FBI building in Anchorage.

J.A. has been diagnosed provisionally with delusional disorder. J.A. suffers from persecutory delusions that are directly related to his criminal charges. He believes that various law enforcement and government officials are involved in a variety of illegal activities, including embezzlement, corruption, brainwashing citizens through listening devices, and raping women and children. He believes that he is being prosecuted as a cover-up for these illegal activities.

Following a series of competency hearings, the superior court found J.A. incompetent to stand trial on the grounds that he could not rationally consult with counsel and did not have a rational understanding of the proceedings against him.³ The court then ordered J.A. to API for competency restoration treatment. Because the competency restoration treatment was unsuccessful and because J.A. refused to voluntarily take any antipsychotic medication, the State subsequently moved under Sell to involuntarily medicate J.A.

In Sell v. United States, the United States Supreme Court recognized that all individuals, including criminal defendants, have a “significant constitutionally protected liberty interest in avoiding the unwanted administration of antipsychotic drugs.”⁴ The Sell Court articulated a four-part test that must be met before a court can authorize the involuntary medication of an incompetent criminal defendant for the sole purpose of rendering them competent to stand trial.⁵ This test requires the State to prove by clear and convincing evidence that: (1) there are “important governmental interests at stake”; (2) “involuntary medication will significantly further those concomitant state interests” in that “administration of the drugs is substantially likely to render the defendant competent to stand trial” and “substantially unlikely to have side effects that will interfere significantly with the defendant's ability to assist counsel in conducting a trial defense”; (3) “involuntary medication is necessary to further those interests,” i.e., “any alternative, less intrusive treatments are unlikely to achieve substantially the same results”; and (4) “administration of the drugs is medically appropriate, i.e., in the patient's best medical interest in light of [their] medical condition.”⁶ The Sell Court emphasized that, under this test, orders authorizing involuntary medication solely for restoration of competency “may be rare.”⁷

In the superior court proceedings, J.A. contested the first and second prongs. The superior court relied on the nature of the charges and testimony from one of the alleged victims to find the first prong. With regard to the remaining three prongs, the superior court held a multi-day Sell hearing at which the State presented the testimony of two experts from API — Dr. Lesley Kane, chief forensic psychologist, and Dr. John Tarim, J.A.’s treating psychiatrist. The court also relied on Dr. Kane's testimony from the earlier competency hearings. The defense called its own expert to testify, Dr. Bowman Smelko, a forensic psychologist.

Notably, all three medical experts agreed with the provisional diagnosis of delusional disorder, and they all agreed that antipsychotic medication was the medically appropriate treatment for J.A. The experts also agreed that J.A.’s symptoms would not improve and that he could not be restored to competency without antipsychotic medication.

The only point of disagreement among the experts was on the second prong of the Sell test — whether the important government interest in restoring J.A. to competency would be “significantly further[ed]” by the involuntary administration of antipsychotic medication.⁸ To prevail on this prong, the State must prove, by clear and convincing evidence, that the defendant is “substantially likely” to be restored to competency and “substantially unlikely” to experience side effects that would interfere significantly with his ability to assist counsel in conducting a trial defense.⁹

The experts appeared to agree that it was “substantially unlikely” that J.A. would experience significant side effects. But there was disagreement as to the likelihood that J.A. would be restored to competency if he were involuntarily medicated with the proposed antipsychotic medication — olanzapine (Zyprexa) or haloperidol (Haldol).

Dr. Kane testified that it was substantially likely that J.A. would be restored to competency. She testified that “substantially likely” meant a likelihood that was significantly greater than fifty percent. Dr. Kane acknowledged that persons with delusional disorders were generally less responsive to treatment than those with other diagnoses, but she based her opinion that there was a substantial likelihood that J.A. could be restored to competency on the fact that his cognition was intact, that he was of average or even above average intelligence, and that he had a factual understanding of the court process. She also based her opinion on her twenty-seven years of forensic experience and her experience with persons with delusional disorder being restored to competency in the forensic unit of API.

Dr. Tarim's testimony was more equivocal than Dr. Kane's testimony. Dr. Tarim testified that he was new to API and had never previously participated in a Sell hearing. He was unwilling to assign a particular percentage of likelihood that J.A. would be restored to competency in part because he was unfamiliar with the legal requirements of competency. However, he did testify that it was “very likely” that J.A. would respond positively to the medication and that “any response would improve communications.”

Dr. Tarim testified that the anticipated effect of medication was to lessen the intensity of the delusions and make them less fixed, and he asserted that the proposed medications — olanzapine and haloperidol — were both medically appropriate for J.A. and consistent with accepted psychiatric care. Dr. Tarim testified that he would start with a low dosage that he would increase if needed and that he would expect to see a response within two to four months. He indicated that the research “is more in favor of” olanzapine and that he would likely start with that drug. Dr. Tarim also testified that he did not necessarily agree that persons with delusional disorder were more resistant to medications than persons with schizophrenia. He surmised that it is often viewed that way because persons with delusional disorder are unlikely to voluntarily take medication consistently in the outpatient setting, they are less likely to meet the criteria for involuntary treatment, and it may take their symptoms a little longer to respond to medication.

On the second day of the Sell hearing, the defense attorney questioned Dr. Kane about some research studies. (We note that neither party appears to have placed any of the research articles into the record and we therefore do not have the articles to review.) Dr. Kane acknowledged that there were studies that showed an efficacy rate of less than fifty percent with regard to persons with delusional disorder treated with antipsychotic medication. (One study showed an efficacy rate of only thirty-two percent.) Dr. Kane testified that these studies did not change her more optimistic prediction regarding J.A.’s substantial likelihood of restoration to competency in part because these studies did not deal with competency. She also testified that people with delusional disorder can react differently to medication and that medication compliance in the studies was not clear but would be guaranteed in J.A.’s case because he would be involuntarily medicated while in an in-patient setting.

The defense expert, Dr. Smelko, a forensic psychologist, testified regarding the same research studies. Dr. Smelko testified that, according to the research, delusional disorder was difficult to treat, and that persecutory delusions were “probably the hardest” type of delusion to treat. According to Dr. Smelko, “the research over the last seventy years has panned out to have roughly a thirty-two percent ․ improvement in psychological symptoms.” He testified that it was possible that J.A. could be restored to competency but “the probabilities are lower than fifty percent.” Dr. Smelko also testified that an improvement in J.A.’s symptoms could help restore J.A. to competency but might not “be enough.” Dr. Smelko testified that he met with J.A. for an hour and a half and that J.A.’s delusions were “extreme” — eight or nine on a scale of one to ten.

 The superior court's decision

Following the Sell hearings, the superior court orally recorded its decision. The court first found that the State had satisfied the Sell prongs over which there had been no dispute — i.e., that the State had proven by clear and convincing evidence that the proposed medication was medically appropriate and in J.A.’s best medical interests, that the proposed medication was necessary because J.A. could not be restored to competency without the medication, and that it was “substantially unlikely” that J.A. would suffer any adverse side effects. The court then turned to the two Sell prongs that had been disputed — whether there was an important government interest at stake and whether J.A. was “substantially likely” to be restored to competency.

With regard to the first prong, the court found that the State had met its burden of proving an important government interest because J.A. was charged with felonies that involved threats to persons.¹⁰

With regard to the second prong, the court acknowledged that there was a disagreement between Dr. Kane and Dr. Smelko as to whether J.A. was “substantially likely” to be restored to competency. But the court ultimately found that Dr. Kane's testimony was entitled to more weight because it was “focused on her hands-on experience working with people with delusional disorder and working with [J.A] specifically.” The court noted that Dr. Kane based her opinion, at least in part, on the fact that J.A.’s cognition was intact, and the court explained that if his cognition were less intact then his chances of being restored to competency would likely be lower.

Finding Dr. Kane's testimony “highly credible,” the court concluded that the State had met its burden of proving by clear and convincing evidence that J.A. was substantially likely to be restored to competency by the proposed antipsychotic medication regimen. The court therefore authorized API to involuntarily medicate J.A. with the proposed medication regimen.

 The additional proceedings on remand

J.A. petitioned this Court to review the superior court's order authorizing API to involuntarily medicate J.A. (The superior court's order is stayed pending the outcome of this petition.)

In his petition, J.A. conceded that the State had met the first, third, and fourth prongs of the Sell test. But he argued that the superior court had erred when it found that there was a “substantial likelihood” — i.e., a likelihood significantly greater than fifty percent — that J.A. would be restored to competency if he were involuntarily medicated with the proposed medication.

Because there were some ambiguities in Dr. Kane's testimony regarding her personal experience in the last year in treating persons with delusional disorder at API for restoration to competency, we remanded this case to the superior court for clarification of that testimony. We also sought clarification regarding Dr. Kane's repeated references to Clozaril, a newer antipsychotic medication that she testified had been effective in treating persons with delusional disorders but was not being recommended for J.A.’s treatment.

On remand, Dr. Kane testified that her opinion that there was a substantial likelihood that J.A. would be restored to competency by either olanzapine or haloperidol was not based on other patients’ experience with Clozaril. She clarified that there had been six patients with delusional disorder in the forensic unit at API over the last year or so. Of those six patients, three patients had been medicated with antipsychotic medication. Two of these patients had been restored to competency — one through the use of olanzapine and one through the use of Seroquel. The third patient was initially prescribed olanzapine but then switched to other medications because of side effects; that patient was not restored to competency.¹¹

Following the hearings on remand, the superior court issued a supplemental order in which it ruled that the testimony on remand had not changed the court's conclusion that the State had met its burden of proving by clear and convincing evidence that there was a substantial likelihood that J.A. would be restored to competency if he were involuntarily medicated with the antipsychotic medication recommended by API. The court explained that it had based its conclusion on Dr. Kane's decades of experience as a forensic psychologist as well as “her observations of [J.A.] on a regular basis while he was housed [at] API between November 2025 and March 2026.” The court noted that Dr. Kane's opinion was that the likelihood of restoration was high because J.A.’s cognition was intact. The court also noted that Dr. Tarim, J.A.’s treating psychiatrist, had testified that it was “very likely” that J.A.’s symptoms would respond to the proposed medication, which would lessen the intensity of his delusions.

The court noted that “[a]lthough medication may not completely resolve [J.A.’s] delusions, it will likely reduce the delusions to a degree that will restore him to a point that he can competently communicate with counsel.” The court therefore concluded that “the reduction of the delusions, coupled with [J.A.’s] cognition, makes it substantially likely that he will be rendered competent to stand trial.”

 Why we affirm the superior court's order

On petition, J.A. only challenges the superior court's conclusion with regard to the second prong, and, specifically, he only challenges the superior court's conclusion that he is “substantially likely” to be restored to competency if he is involuntarily medicated with the proposed medication regimen. We therefore confine our analysis in this order to that issue.

In R.A. v. State, we held that “ ‘substantially likely’ refers to a likelihood of significantly more than fifty percent.”¹² As we explained, “interpreting ‘substantially likely’ to mean significantly more than a fifty percent chance of restoration to competency is in keeping with Alaska's more protective privacy and liberty rights, which have led the Alaska Supreme Court to conclude that the right to refuse unwanted antipsychotic medication is ‘fundamental’ under the Alaska Constitution.”¹³

Here, there was conflicting testimony regarding whether there was a substantial likelihood that J.A. would be restored to competency if he were involuntarily medicated with the proposed antipsychotic medication. Relying on her personal experience with J.A. and with other patients with delusional disorder, Dr. Kane testified unequivocally that there was a substantial likelihood — i.e., a likelihood that was significantly more than fifty percent — that J.A. would be restored to competency. Dr. Tarim testified more equivocally that it was “very likely” that J.A.’s symptoms would respond to the medication and that his delusions would then lessen in their intensity, which would aid in his communications. In contrast, Dr. Smelko, the defense expert, testified that the research did not support Dr. Kane's optimistic assessment of the likelihood that J.A. would be restored to competency; Dr. Smelko testified that while it was possible that J.A. could be restored to competency, it was not probable (or “substantially likely”).

The superior court resolved this conflict in testimony by finding Dr. Kane's opinion more credible and entitled to more weight because it was based on her individualized assessment of J.A. and his specific attributes and because of her professional experience more broadly.

The question of how much deference the superior court's ruling should be given on this issue is an unsettled question of law in this jurisdiction. The United States Supreme Court did not prescribe a standard of appellate review in Sell, and we did not resolve this issue in R.A.¹⁴ However, a majority of federal courts treat the first Sell prong as a question of law to be reviewed de novo and the remaining Sell prongs — including the second prong — as questions of fact to be reviewed only for clear error.¹⁵

On petition, J.A. cites to a Tenth Circuit case, United States v. Bradley, for the proposition that the second prong — whether involuntary medication will “significantly further” the important government interest — is a question of law that is reviewed de novo.¹⁶ J.A. further asserts that whether it is “substantially likely” that forced medication will restore the defendant to competency “is not a factual assertion, but a legal determination.” But Bradley does not support this assertion.

Bradley was issued in 2005, two years after the Sell decision.¹⁷ At that time, only one circuit court (the Second Circuit) had decided the standard for appellate review of the Sell factors.¹⁸ In United States v. Gomes, the Second Circuit adopted what would become the majority approach — treating the first prong as a question of law to be reviewed de novo and the other prongs as questions of fact to be reviewed for clear error.¹⁹ In Bradley, the Tenth Circuit agreed with the Second Circuit that the first prong was a question of law but stated that it “would expand the parameters of the legal question to include whether involuntary administration of antipsychotic drugs ‘is necessary significantly to further important governmental trial-related interests.’ ”²⁰

Some later cases interpret this holding (as J.A. does in his petition) as establishing that the Tenth Circuit views the second Sell prong as a question of law to be decided de novo.²¹ But this appears to be a misreading of Bradley.

A closer reading of Bradley reveals that the Bradley court treats the question of whether administration of the drug regimen was “substantially likely to render the defendant competent to stand trial” as a factual determination that is reviewed for clear error.²² The Bradley court's analysis divided the questions to be decided into two categories, first addressing the trial court's “factual findings” and then turning to the trial court's “legal conclusions.”²³ The Bradley court analyzed the question of whether the medication regimen was “substantially likely to render the defendant competent to stand trial” as one of the factual findings.²⁴

What the Bradley court treated as a question of law is what the opinion referred to in the latter part of the decision as “the ultimate legal question” — “whether involuntary administration of antipsychotic drugs ‘is necessary significantly to further’ the important governmental trial-related interests in returning [the defendant] to competency.”²⁵ Quoting Sell, the Bradley court described this question as follows:

Has the Government, in light of the efficacy, the side effects, the possible alternatives, and the medical appropriateness of a particular course of antipsychotic drug treatment, shown a need for that treatment sufficiently important to overcome the individual's protected interest in refusing it?[26]

The Sell Court itself described this question as “the ultimate constitutionally required judgment.”²⁷ In other words, the Bradley court treated the entire inquiry under Sell as a mixed question of fact and law with the ultimate determination of whether the government has met its burden on all the prongs as a legal determination.²⁸

Thus, all of the federal courts appear to be in agreement that the question of whether a defendant is “substantially likely” to be restored to competency by the involuntary administration of antipsychotic medication is primarily a factual question to be reviewed for clear error. We therefore review the superior court's finding that the proposed medication regimen is substantially likely to restore J.A. to competency for clear error.

“Clear error ‘exists when our review of the record leaves [the reviewing court] with the definite and firm conviction that the superior court has made a mistake.’ ”²⁹ We have thoroughly reviewed the record in this case, and we do not find clear error. The superior court made detailed findings that are supported by the record and by the court's assessment of the relative credibility of the experts.³⁰ The court placed the most weight on Dr. Kane's testimony given her decades of experience as a forensic psychologist as well as her direct observations of J.A. when he was housed at API. The court found that Dr. Kane, who testified that there was a substantial likelihood of J.A. regaining competency as a result of the proposed medication, was “highly credible.” The superior court is in a better position than this Court to make such a credibility determination.

Critical to the superior court's findings — and to Dr. Kane's own testimony — was the fact that J.A.’s cognition is intact. The superior court also noted Dr. Tarim's testimony that it was “very likely” that J.A.’s symptoms would respond to the proposed medication regimen, lessening the intensity of his delusions. Thus, the superior court found that, “[a]lthough medication may not completely resolve [J.A.’s] delusions, it will likely reduce the delusions to a degree that will restore him to a point that he can competently communicate with counsel.” This finding is specific to J.A. and tied directly to his intact cognition.³¹

We conclude that the superior court's findings are not clearly erroneous and that its ultimate conclusion authorizing the administration of involuntary medication is supported by the record.

We therefore AFFIRM the superior court's order authorizing API to involuntarily medicate J.A. with the proposed medication regimen.

FOOTNOTES

1.   Initials have been used to protect the privacy of the petitioner.

2.   Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003).

3.   See AS 12.47.100(a); see also Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (holding that the constitutional standard for competency to stand trial is whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him”).

4.   Sell, 539 U.S. at 178, 123 S.Ct. 2174 (cleaned up) (quoting Washington v. Harper, 494 U.S. 210, 221, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990)).

5.   Id. at 180-81.

6.   Id.; see also R.A. v. State, 550 P.3d 594, 604 (Alaska App. 2024) (adopting majority view that the Sell factors require proof by clear and convincing evidence).

7.   Sell, 539 U.S. at 180, 123 S.Ct. 2174.

8.   Id. at 181 (emphasis omitted).

9.   Id.

10.   We note that J.A. does not challenge the first prong in his petition. We therefore treat this first prong as though it is met and express no opinion as to any potential challenges to this factor. See id. at 180 (noting that “[s]pecial circumstances” such as the time already served by the defendant “may lessen the importance of [the government's] interest”).

11.   In addition to the three patients who received medication, there was also a fourth patient who was medicated with risperidone after leaving the forensic unit; that patient may have regained competency, although there had been no court proceedings related to competency.

12.   R.A. v. State, 550 P.3d 594, 606 (Alaska App. 2024).

13.   Id. (quoting Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 248 (Alaska 2006)).

14.   See id. at 608; see also United States v. Dillon, 738 F.3d 284, 291 (D.C. Cir. 2013) (noting that the Supreme Court did not decide this issue in Sell).

15.   See Dillon, 738 F.3d at 291 (collecting cases showing that a majority of courts review the second, third, and fourth Sell factors as questions of fact reviewed for clear error); United States v. Fazio, 599 F.3d 835, 839 (8th Cir. 2010) (noting that the “overwhelming majority of courts” have adopted this approach); United States v. Hernandez-Vasquez, 513 F.3d 908, 915 (9th Cir. 2008) (rejecting the proposition that the second prong of the Sell test is a question of law because “the question of whether medicating a particular defendant involuntarily would ‘significantly further’ the asserted governmental interests at stake typically involves substantial questions of fact” and “[r]esolution of such questions is best left to the district court and must be accorded deference on appeal”).

16.   United States v. Bradley, 417 F.3d 1107, 1113-14 (10th Cir. 2005).

17.   Id. at 1109.

18.   Id. at 1113 (discussing the standard of review).

19.   Id. at 1113-14 (citing United States v. Gomes, 387 F.3d 157, 160 (2d Cir. 2004)).

20.   Id. (quoting Sell v. United States, 539 U.S. 166, 179, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003)). We note that the quote “necessary significantly to further important governmental trial-related interests” is derived from a discussion in Sell regarding the holdings of Riggins v. Nevada, 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992) and Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) rather than from the four-factor test articulated in Sell. Sell, 539 U.S. at 179, 123 S.Ct. 2174.

21.   See, e.g., United States v. Dillon, 738 F.3d 284, 291 (D.C. Cir. 2013) (treating the Bradley decision as the one anomaly from what is otherwise the clear majority position that the second Sell factor is a question of fact to be reviewed for clear error); United States v. Diaz, 630 F.3d 1314, 1330-31 (11th Cir. 2011) (treating Bradley as an anomaly and otherwise adopting the clear majority approach of treating the second Sell factor as a question of fact to be reviewed for clear error); United States v. Fazio, 599 F.3d 835, 839-40 (8th Cir. 2010) (treating Bradley as an anomaly and otherwise adopting the approach by the “overwhelming majority” of courts that treat the second, third, and fourth Sell factors as questions of fact to be reviewed for clear error); United States v. Valenzuela-Puentes, 479 F.3d 1220, 1224 (10th Cir. 2007) (interpreting Bradley as requiring the court to review the second Sell factor as a question of law that is reviewed de novo); United States v. Hernandez-Vasquez, 513 F.3d 908, 915 (9th Cir. 2008) (interpreting Bradley as holding that the Tenth Circuit treats the second Sell factor as a question of law to be decided de novo and rejecting this approach in favor of the majority approach of treating the second Sell factor as a question of fact to be reviewed for clear error). We note that more recent Tenth Circuit cases appear to have adopted the majority position of treating the second Sell factor as a question of fact to be reviewed for clear error. See United States v. Dear, 104 F.4th 145, 149, 153 (10th Cir. 2024).

22.   Bradley, 417 F.3d at 1114 (quoting Sell, 539 U.S. at 181, 123 S.Ct. 2174).

23.   Id. at 1114-17.

24.   Id. at 1114 (quoting Sell, 539 U.S. at 181, 123 S.Ct. 2174).

25.   Id. at 1117 (citation omitted) (quoting Sell, 539 U.S. at 179, 123 S.Ct. 2174).

26.   Id. at 1113 (alteration omitted) (quoting Sell, 539 U.S. at 183, 123 S.Ct. 2174).

27.   Sell, 539 U.S. at 183, 123 S.Ct. 2174.

28.   Cf. R.A. v. State, 550 P.3d 594, 607 (Alaska App. 2024) (citing In re Naomi B., 435 P.3d 918, 923-24 (Alaska 2019)) (noting that the ultimate question of whether the State can involuntarily medicate a patient in the civil context is a mixed question of fact and law).

29.   Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503, 508 (Alaska 2015) (quoting Gilbert M. v. State, 139 P.3d 581, 586 (Alaska 2006)).

30.   See United States v. Dear, 104 F.4th 145, 146 (10th Cir. 2024) (upholding district court's Sell order because “the district court made sufficiently detailed factual findings and ․ those findings — which placed greater weight on the government's experts because of their extensive experience restoring competency and their personal experience observing and interacting with Dear — are not clearly erroneous”).

31.   Contrast United States v. Valenzuela-Puentes, 479 F.3d 1220, 1229 (10th Cir. 2007) (reversing and remanding Sell order where the district court “provided no explanation as to whether or why it had become clearly convinced that Mr. Valenzuela-Puentes could be rendered competent through medication despite his exceptionally low IQ”).

Entered at the direction of the Court.